Human Rights Tribunal of Ontario
BETWEEN:
CO.K. by his next friend P.K. and the Applicants listed on Schedule “A” Applicants
-and-
Ontario Hockey Federation and Hockey Canada Respondents
INTERIM DECISION
Adjudicator: Sherry Liang Date: February 22, 2011 File Numbers: 2010-04852-I; 2010-04971-I Citation: 2011 HRTO 376 Indexed as: CO.K. v. Ontario Hockey Federation
APPEARANCES
CO.K. by his next friend P.K., A.R. by his next friend V.R., J.D. by his next friend M.D., CH.K. by his next friend H.K., T.R. by his next friend D.R., P.V. by his next friend P.V., Applicants Karen McArthur, Counsel
Hockey Canada and Ontario Hockey Federation, Respondents Craig Vander Zee, Counsel
1These are Applications made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) that raise a common issue about whether residency and mobility rules that require minor hockey players to play with a team or association that corresponds to their place of residence, or to obtain waivers/releases to play elsewhere, discriminate against boys.
2By Interim Decision dated December 7, 2010, 2010 HRTO 2425, the Tribunal directed that Tribunal File No. 2010-04831-I (the CH.K Application) be heard as the “lead case”.
3The Tribunal subsequently received correspondence from the mother of the applicant in the lead case stating, among other things, “Due to family medical matters I will not possibly have the time or the resources to be the lead case. I am respectfully requesting that the lead case be given to [M.S. by his next friend L.S.]. I would still very much like to be part of this group claim…”
4M.S. by his next friend L.S. has, however, withdrawn his Application.
5The Tribunal scheduled a hearing by conference call for the purpose of consulting with the parties and making directions about a lead case, in view of the above, to confirm with the parties who their representatives are, and to set dates for the hearing of the lead case.
6That conference call took place on February 16, 2011. The applicants were represented by counsel, for the purpose of the conference call only.
7The respondents submitted that the Tribunal should not re-visit its decision to designate CH.K. Application as the lead case, despite the correspondence referred to above. They submitted that they have been prejudiced in having provided submissions as directed on the issue of the lead case, receiving the Tribunal’s direction on the issue, and now facing a re-opening of the issue.
8In the alternative, the respondents submitted that if the Tribunal decides to re-open the issue and designate another lead case, it should be Tribunal File No. 2010-04800-I (the J.D. Application), in the next alternative Tribunal File No. 2010-04797-I (the A.R. Application) or, in the final alternative, Tribunal File No. 2010-04852-I (the T.R. Application)
9The applicants, through counsel, submitted that Tribunal File No. 2010-04795-I (the CO.K. Application) should proceed as the lead case in the circumstances. Further, they submitted that there is no prejudice to the respondents in re-visiting this issue at this stage, and accepting the wishes of the family of CH.K. not to be the lead case.
10After considering the matter, I issued an oral ruling, directing that the CO.K. Application replace the CH.K. Application as the lead case. The style of cause is to be amended accordingly. In arriving at my direction, I took into account that the applicants have been unrepresented until now and may not have had a full understanding of the legal process. I appreciate that there is some prejudice to the respondents in allowing the applicant CH.K. to effectively request that the Tribunal change a direction it has already made, but in my view the prejudice is not significant.
11Given that no hearing dates had yet been set, and no documents or witness statements prepared or exchanged, the only duplication of effort is in providing renewed submissions on the question of which case should proceed first. Allowing the CH.K. family to withdraw as the lead case will not result in delay in the hearing.
12I also took into account the fact that the CH.K. family does not wish to proceed as the lead case, and that the CO.K. family is willing to take this role, and to meet the Tribunal’s deadlines and attend at the hearing as required. On the whole, I did not consider the CO.K. Application to be less representative of the others and therefore saw no reason why it would not be an appropriate case through which the common issues could be litigated
13The parties agreed to dates for the hearing, as well as timelines for production and disclosure, although the respondents indicated it was without prejudice to any objection they may wish to take to my direction on the lead case.
14The respondents state that they may wish to make submissions about costs at the hearing on the merits.
15During the conference call, an issue arose about whether the applicant, CO.K. may wish to seek to amend his Application, but after reflection CO.K. confirmed that it was not his intent to do so.
16The father of CO.K. also confirmed that he is the representative for all applicants in these Applications and that the Tribunal’s records may be amended accordingly.
17The parties agreed to a further case conference call following the exchange and production of documents and witness statements. In the previous Interim Decision, I indicated that the Tribunal would not determine preliminary issues raised by the respondents in advance of the hearing on the merits. However